Rensselaer v. Van Rensselaer

• Decision Date: 16 April 1889
• Citation: 113 N.Y. 207,21 N.E. 75
• Parties: VAN RENSSELAER v. VAN RENSSELAER.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 207

21 N.E. 75

VAN RENSSELAER

v.VAN RENSSELAER.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, First department.

Thomas Alison, for appellant.

J. Edward Ackley, for respondent.

FINCH, J.

This action was brought to emforce the collection of a legacy, and resulted in a judgment for its recovery, with the interest accrued, against the sole acting executor and against the residuary legatee. The terms of the bequest were somewhat unusual. The testator, Philip Livingston Van Rensselaer, first gave to his two brothers, and to his sister Alice, $10,000 each, to be paid out of moneys which he had loaned from time to time to a relative, whom he named. He then gave to his sister Elizabeth the legacy now in question, using the following language: ‘I hereby give and bequeath to my sister Elizabeth the sum of ten thousand dollars, to be paid by my executors when it shall be convenient for them, without regard to the time fixed by law, out of the moneys derived from the sale of the Van Schaick farm left me by my brother Courtlandt, or otherwise, if it shall seem best to them. It is further my will that this legacy shall be deemed subservient to all others.’ The testator there gave a small legacy to the College of New Jersey, and all the rest, residue, and remainder of his property to his wife, Annie. He named her as executrix, and the defendant Hamilton as executor, but the latter only qualified and acted. The will is dated May 26, 1871, and the testator died in March, 1873. It is now 16 years since the will took effect, and the legacy given to Elizabeth remains still unpaid. She has died, and her representatives are seeking in this action to enforce the gift so long and persistently withheld. In 1870, and about one year before the date of he will, the testator had entered into a contract with John P. Albertson and Levi Smith for the sale by them in city lots of the Van Schaick farm, which was situated near the city of Troy. They were described as his agents, and as acting in his employ. They were to find purchasers and the deeds to be executed by Van Rensselaer. The proceeds of all sales were to be received by them, applied first to the payment of necessary disbursements, and then the balance to be paid to Van Rensselaer, until he had received the full sum of $20,000, at which time the unsold land was to belong in equal proportions to the two parties to the contract, and the proceeds of further sales to be equally divided. Under this contract the testator before the date of his will had received in mortgages as the product of sales a little over $2,000, and was expecting more to follow; and before his death had received in such mortgages a total of $8,140. These were proceeds ‘derived from the sale of the Van Schaick farm,’ and were turned into money after his death by a transfer of them to Albertson and Smith, who discounted them at a moderate reduction, and they became in he hands of the executor ‘moneys derived from the sale of the Van Schaick farm,’ and within he precise description of the will. The reduction in the amount of these mortgage by the process of turning them into money was probably not far from $1,000, so that something over six or seven thousand dollars was realized in cash. This sum was paid to the residuary legatee, and the executor declares that none of it came into his hands; but he admits that he executed the assignments to enable the legatee to get the money; and it is plain that the purchasers from the executor would have paid him if he had not authorized a direct payment to the legatee. It is found as a fact that after testator's death proceeds of the farm passed through the executor's hands to the amount of $17,240. The appellants insist that in this sum is included the amount realized from the mortgages sold. I do not see how that can be true. Smith furnishes an abstract of all payments made to the estate, which of course includes the mortgages afterwards discounted, and the total is $23,584. If we deduct from that the proceeds of those mortgages, which the court finds to have been $6,334, treated as received by the testator in his lifetime, there remains exactly the $17,240 fixed by the finding. Smith swears that in round numbers about $24,000 was realized from the sales, and that more than $20,000 had been paid on account of the contract to the testator and the estate. I do not deem it material to further examine that subject, for the proceeds of the testator's mortgage were never included by the executor in the general assets, or accounted for as such, but were moneys derived from the farm sales, and specifically applicable to the legacy due Elizabeth. The executor misappropriated them when he permitted their payment to the residuary legatee.

The widow has been paid, and has received into her possession, more than enough of the proceeds of the farm to pay the legacy to Elizabeth. That legacy, by the terms of the will, was charged upon the specific land, and the proceeds of its sale. The legacy was to be paid out of it, and it was not only to stand as security for the payment, but to be deemed the primary fund from which such payment...